Citation NR: 9601871
Decision Date: 01/30/96 Archive Date: 02/09/96
DOCKET NO. 94-03 796 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased evaluation for a residual scar
from the removal of a superficial venous plexus of the right
wrist, currently evaluated as ten percent disabling.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Kristi Barlow, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a May 1993 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied an increased evaluation for a
residual scar from the removal of a superficial venous plexus
of the right wrist, currently evaluated as ten percent
disabling. The veteran, who had active service from January
1973 to November 1976, appealed that decision to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts on appeal that the RO erred in denying an
increased evaluation for a residual scar from the removal of
a superficial venous plexus of the right wrist, currently
evaluated as ten percent disabling. He contends,
essentially, that his wrist is in the same condition it was
prior to the removal of a superficial venous plexus, and he
is experiencing pain, aching and swelling as a result.
Therefore, a favorable determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against an increased evaluation for a residual scar from the
removal of a superficial venous plexus of the right wrist.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran has a well-healed scar over the anterior
aspect of the distal radius of his right wrist approximately
3 centimeters vertically. He experiences slight tenderness
over the scar with palpation and his range of motion is in
tact. There is no obvious damage to nerves.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of ten
percent for a residual scar from the removal of a superficial
venous plexus of the right wrist have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1,
4.40, 4.45, 4.118, Diagnostic Code 7804 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran’s
claim is “well-grounded” within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990). That is, the Board finds that the veteran has
presented a claim which is not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to the claim. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed. Accordingly, no further assistance
to the veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107 (West 1991).
Factual Background
The veteran developed a cyst on his right wrist during active
duty. The cyst, a superficial venous plexus, was removed
prior to discharge and the residual scar was service
connected in November 1982 by an RO rating decision; the
disability was deemed non-compensable at that time under
38 C.F.R. § 4.118, Diagnostic Code 7805. The veteran
appealed that decision to the BVA and in June 1989, the Board
granted a ten percent evaluation for a residual scar from the
removal of a superficial venous plexus of the right wrist
under 38 C.F.R. § 4.118, Diagnostic Code 7804.
In March 1993, the veteran requested that his right wrist
disability be re-evaluated as he alleged that it had returned
to its condition prior to surgery. The veteran was afforded
a VA examination in April 1993 which encompassed both a hand
and finger examination and a nerve examination. The hand and
finger examiner found a well-healed scar over the right volar
distal forearm about .5 centimeters proximal to the radial
wrist. The area around the wound was tender up to one
centimeter and there was a swollen area radial to the wound
approximately .5 centimeters by .5 centimeters, which was a
hard mobile mass. Generally, the right hand was found to be
mildly swollen compared to the left hand. The x-rays were
normal. The nerve examiner found a cyst in the right wrist,
not in the same location as the cyst previously removed
surgically, with sensory nerve impairment and weakness of
grip in the right hand. In May 1993, the ten percent
evaluation was continued.
The veteran underwent another VA examination in July 1994
which encompassed a joint examination and a peripheral nerve
examination. The veteran was seen with complaints of pain
and aching in his right wrist with occasional swelling. The
joint examiner found a well-healed three centimeter vertical
scar over the anterior aspect of the distal radius of the
right wrist. There was slight tenderness over the scar with
palpation, but no cyst formation palpated. The range of
motion was in tact and muscle strength was good against
resistance. There was no swelling or warmth present in the
wrist, nor were there any deformities. Palmar flexion was 80
degrees, dorsiflexion was 70 degrees, radial deviation was 20
degrees and ulnar deviation was 45 degrees. The veteran was
diagnosed with residuals of a cyst removal of the right
wrist. The peripheral nerve examiner found pain-limiting
symptoms with no obvious damage to nerves. The pain was
found to probably be secondary to local irritation secondary
to scarring or adhesions affecting the muscle tendons or
superficial nerves in that local area. The diagnosis was
cystic irritation of the right volar aspect of the wrist,
status post removal of original cyst in 1976. X-rays found a
normal appearing wrist with no arthritis.
Analysis
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. Where
entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet.App. 55, 58 (1994).
The veteran’s right wrist disability was evaluated in rating
decisions under 38 C.F.R. § 4.118, Diagnostic Codes 7804 and
7805. Diagnostic Code 7804 allows a ten percent evaluation
for superficial scars which are tender and painful on
objective demonstration. There are no other evaluations
available under this diagnostic code so the Board considered
other diagnostic codes to determine if an increase was
warranted.
Diagnostic Code 7805 requires that scars other than
superficial scars be evaluated based on the limitation of
functions resulting from the scarring. Therefore, the Board
considered 38 C.F.R. §§ 4.71 and 4.71a, Diagnostic Code 5215.
Plate I referred to in 38 C.F.R. § 4.71 reflects that the
normal range of motion for the wrist is 70 degrees
dorsiflexion and 80 degrees palmar flexion, which was found
to be the veteran’s range of motion upon examination in July
1994. Diagnostic Code 5215 allows a ten percent evaluation
for a limitation of dorsiflexion less than 15 degrees or a
palmar flexion limited in line with the forearm; a higher
evaluation is not contemplated. Because the veteran was
found to have a normal range of motion in his right wrist, a
rating under this diagnostic code is not available.
Title 38, Code of Federal Regulations, sections 4.40 and 4.45
require the Board to consider pain, swelling, weakness, and
excess fatigability when determining the appropriate
evaluation for a veteran’s disabilities. Recently, the
United States Court of Veterans Appeals (Court) interpreted
these regulations in DeLuca v. Brown, 8 Vet.App. 202 (1995),
and held that all complaints of pain, fatigability, etc.,
shall be considered when put forth by the veteran. In
accordance therewith, the veteran’s reports of pain, aching
and swelling in his right wrist have been considered and the
Board is persuaded that no more than the current 10 percent
evaluation in effect is warranted, particularly in view of
the findings of only slight tenderness, no swelling or warmth
in the right wrist, and the absence of any limitation of
motion.
The RO also considered 38 C.F.R. §4.124a, Diagnostic Codes
8517, 8617 and 8717 in order to determine if an increased
evaluation was available for the veteran. The veteran’s
representative requested in its informal appeal that the
issue of a neurological disorder be remanded as there has
been no rating decision issued regarding such a disorder.
The Board, however, has considered these diagnostic codes in
an attempt to determine if an increased evaluation is
available, even though not specifically raised by the
veteran, as is required by the holding of the Court in
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
Diagnostic Code 8517 contemplates a ten percent evaluation
for moderate incomplete paralysis of the musculocutaneous
nerve, a twenty percent evaluation for severe incomplete
paralysis of the musculocutaneous nerve and a thirty percent
evaluation for complete paralysis of the musculocutaneous
nerve. Diagnostic Code 8617 requires an evaluation of
neuritis on the scale provided for injury of the nerve
involved, and Diagnostic Code 8717 requires an evaluation of
neuralgia on the scale provided for injury of the nerve
involved. Because there was no finding of damage to nerves
in July 1994, the Board concludes that a rating under any of
these diagnostic codes is not available to the veteran for
his right wrist disability.
As stated above, the potential application of other various
provisions of Title 38 of the Code of Federal Regulations has
also been considered, whether or not they were raised by the
veteran, as required by the holding of the Court in
Schafrath, supra.. The Board, however, finds that the
disability picture with respect to the veteran’s right wrist
disability is not so exceptional or unusual as to warrant an
extra-schedular evaluation. There has been no showing that
the right wrist disability causes a marked interference with
employment, necessitates frequent periods of hospitalization,
or otherwise “render[s] impractical the application of the
regular schedular standards.” 38 C.F.R. § 3.321(b)(1).
Absent such factors, the application of 38 C.F.R.
§ 3.321(b)(1) is not warranted.
Lastly, while the Board has considered the doctrine of
affording the veteran the benefit of any existing doubt with
regard to the issues on appeal, the record does not
demonstrate an approximate balance of positive and negative
evidence as to warrant the resolution of this matter on that
basis. 38 U.S.C.A. § 5107(b).
ORDER
An increased evaluation for a residual scar from removal of a
superficial venous plexus of the right wrist is denied.
_______________________________
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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